Since sexism no longer matters, plaintiffs try using “gender identity” to win relief from sexist injury

August 12, 2013

“I lean more towards the feminine spectrum, but I do ovulate between masculine and feminine. It just depends on the day, girl!” – B. Scott, explaining his gender suit.

There was a time when lawyers filed actions against individuals and organizations that discriminated against their clients based on sex. Some of these cases involved damages caused by institutions or officials who illegally discriminated via enforcement of sexist stereotypes. These cases were usually brought on behalf of women. Examples include women who were not promoted due to their failure to exhibit ritualized behaviors of submission not required of their male coworkers , women who were required to don sexualized uniforms and maintain specific, expensive (unpaid) time-consuming body grooming and face-painting regimes as a condition of workplace readiness not required of male co-workers.

These lawsuits were filed on the grounds that sex-stereotyping is discriminatory against women, and when institutionally or officially enforced, illegal.

The current age of profound political backlash against the rights of women has resulted in a reinvigoration of state, official and institutional codification of sexual stereotypes (“gender”) as a legally protected form of discrimination now framed as a personal belief or “faith”. As such, sex discrimination has been re-classified as a state-protected institutional and personal “value”.

The new form of sex-based discrimination has elevated the sex-stereotype to a protected legal category that eclipses sex itself. Claims of sex discrimination are now opposed by the new protected “right to believe in” sex discrimination. This new protected form of sex stereotyping is called “gender” or “gender identity”. The legal creation of “Gender Identity” is identical to the old form of discriminatory sex stereotyping except that it now protects and codifies the “right to stereotype” while providing limited recourse against sex discrimination to individuals that publicly, formally pledge belief in sex stereotypes. Examples include statutes which allow males to displace females in state education Title IX sports programs on the basis that the males believe themselves to possess thoughts, feelings, and behaviors sex-stereotyped as female.

What then will become of those claims formerly filed under now eliminated sex discrimination protections? Two recent actions provide us with a clue.

Fashion pundit and femme gay male internet personality B.Scott filed a 2.5 million dollar lawsuit against Viacom and the BET cable network last week after an incident which took place during his July appearance on the pre-show for the BET Awards. Scott claims he was pulled off the air and told his clothing did not adhere to the company’s sex-based dress policy. He states that he was forced to change outfits to one that BET producers deemed appropriate for males based on sex-stereotypes. These actions resulted in alleged damage to Scott’s reputation due to an interruption of his performance, wrongful termination, loss of income, and emotional distress due to the unlawful infliction of discriminatory wardrobe policies based on sex. However since sex-stereotyping is now a protected legal category Scott’s attorney recommended filing suit on the basis of “Gender Identity” discrimination. One problem: Scott has no record of ever making public pledge or testimony of a personal transgender belief or “identity”. On the contrary, Scott has always maintained a strong pride in himself as a flaming gay man. As part of his lawsuit, Scott was forced to make a public statement adopting a personal “gender identity” and proclaiming himself to be transgender.

“Over the years my love muffins and strangers alike have questioned me about my gender identity. What IS B. Scott? As a society we’ve been conditioned to believe that a person has to be ‘exactly’ this or ‘exactly’ that. Biologically, I am male — as my sex was determined at birth by my reproductive organs.

However, my spirit truly lies somewhere in between. It is that same spirit that has allowed me to become so comfortable in my skin, choose how I express myself, and contributes to how I live my day-to-day life.

Transgender is the state of one’s gender identity (self-identification as woman, man, neither or both) not matching one’s assigned sex (identification by others as male, female or intersex based on physical/genetic sex). [source]

It is by that definition that I accept and welcome the ‘transgender’ label with open arms.

It is also by that definition that BET and Viacom willingly and wrongfully discriminated against my gender identity during the 2013 BET Awards Pre-Show.”

B.Scott’s announcement did not sit well with many in the transgender community who disputed the authenticity of his newly declared protected gender beliefs. Longtime trans activist and Transgriot blogger Monica “Fishy” Roberts (who believes he is female and refers to his penis as a “six inch neo-clitoris”) tweeted “When B Scott starts taking hormones and calling himself Brittany (or another femme name starting with ‘B’) and declares he’s transitioning then I’ll consider him part of Team Trans.”

Roberts and others rightfully observe that Scott’s sudden public testimonial of his newly adopted Gender Identity beliefs appears insincere and mercenary. However unlike an individual who suddenly proclaims Judaism to access a protected legal right to compel an employer to give them the day off for Passover, the protected legal category of Gender Identity requires no evidence of authenticity. Duration of belief, performance of rituals, membership in a faith affinity group are objective criteria used to parse self-declared legally protected personal belief identities. Gender Identity requires no such objective criteria. Anyone can claim it at any time, even retroactively, purely on the basis of personal report of one’s feelings. Gender Identity offers legal protection to anyone who is willing to declare at any time that they:

– possess intellectual, psychological or behavioral characteristics which fail to conform to social stereotypes based on reproductive sex,

-believe such non-reproductive traits are inextricably caused by reproductive biology,

-draw the conclusion that reproductive biology itself is therefore not objectively observable.

This new protective legal status for “sex-deniers” has undermined, if not removed, the grounds for claims based on sex discrimination, or at least provided cover for the lack of political will to enforce anti-discrimination claims of women, who are overwhelmingly the victims of such sex discrimination. It is little wonder that femme gay man Scott decided not to pursue remedy via sex-discrimination suit although that is obviously what he was a victim of if his account of events is factual.

Instead of asserting his right to dress as he wished regardless of sex, Scott’s representatives found it more advantageous in this legal environment to argue that Scott’s right to wardrobe hinged on his self-concept of himself as reproductively (partially) female.

In Quebec last month, management consultant and butch lesbian Tommi Sojourner filed a Judicial complaint on the grounds of “Gender Identity” after an incident of apparent sex-based harassment that occurred in a bizarre courtroom exchange with a judge who insisted on referring to the claimant as male over and over and over again, even after correction by Sojourner and opposing counsel over a dozen times. Sojourner, who does not perform femininity, expressed that being repeatedly referred to as male – after multiple corrections- based on her failure to conform to female sex-stereotypes was insulting, sexist, and deliberately harassing. Further, she alleges that her case was not given an objective hearing due to judicial bias based on her sex-role nonconformity. This is sex discrimination. It is discriminatory for a judicial official to insist that a woman is actually a male due to the fact that she fails to conform to sex-based stereotypes of dress and behavior and it is harassment to continue to do so after being corrected more than a dozen times.

Sojourner’s claim rests on the fact that she is not transgendered. If she was a genderist she would have been well pleased by the judge’s repeated cross-sex identification of her, based on sex-stereotypical norms. Regardless, in the post-sex legal landscape where “sex-denial” is itself a protected category, her attorney thought it expeditious to utilize a Gender Identity claim vs. a sex discrimination case. By this erasure Sojourner was not discriminated against as a woman based on sex, or as a lesbian, but on the dis-acknowledgement of her own personal free-floating self-concept of herself as (like Scott) inhabiting “femaleness“.

If sex does not exist, sex discrimination does not exist. Class-action litigation based on sex does not exist.

With the elimination of the legal category of sex and the removal of sex-stereotyping as an actionable wrong, litigants have no choice but to seek protection under “Gender Identity” on the basis that formerly discriminatory (now protected) sex-stereotypes are being incorrectly applied to them based on personal testimony of their self-reported, objectively unobservable, sex reproductive “self-concept”.

But these lawyers obviously think that the chances of success are greater/the claim is stronger if B.Scott claims a special snowflake “gender identity” RATHER THAN going after the sex-based dress code itself. It’s a way of trying to get your client legal relief on an individual basis, while avoiding the need to confront the bigger social problem.

A trans identity case is stronger because of the Casino case, Jesperson v. Harrah’s, that ruled that sex-specific dress codes do not violate Title VII. Meaning, he has no cause of action for being expected to dress “like a man”. But honestly, he looks more manly in the “woman” clothing.

emmajune, you’re right, Jespersen is controlling in CA because it’s in the 9th circuit. But this case was filed in state court, under state laws. It’s not a Title VII federal case as Jespersen was. Which is another strategic decision, I’m sure. McCoy’s duty as Scott’s attorney is to get him relief, not to challenge precedent for political purposes. Unfortunately for us. Even though sex discrimination would be an equally valid claim here!

So my complaint applies to the larger legal landscape wherein “gender identity,” by allowing individual exceptions to otherwise untouched sex-based dress codes, creates a diversion from having to attack the rule itself under sex stereotyping– which would apply to *everyone.* This is the situation with B.Scott’s complaint under state law in CA right now.
[see also my comment below on August 12 at 2:29pm, where I use Hopkins as illustrative of the problem but, in fact, there is no *federal* “gender identity” cause of action to compete with a possible sex-discrim claim (….yet! see G/ENDA non-passage)]

About Title VII and Jespersen (2006), someone will have to challenge it eventually. And it won’t be pretty because the supreme court’s political leanings are much more conservative now than they were back in Hopkins day (1989). This is why some believe the outrageously unjust Jespersen decision was not appealed to SCOTUS: because the risk of failure and possibly overturning Hopkins was too great. REALLY scary stuff.

Ha, its funny how ‘Fishy’ inadvertently exposes this charade. It’s perfectly fine and dandy when people like her, Colleen Francis, Paul Witherspoon, Valerie Keefe or a whole host of other fetishistic weirdos on the internet attracted to or targeting women ‘identify’ as women with no proof and not even any trace of ‘lived feminine experience’, but as soon as a feminine gay man tries to do the same, magically there is an immense requirement of proof for a legal name change, evidence of hormone use and other things! What happened to the sacred and hallowed twanz principle of ‘identifying for any reason as [x] makes you [x]’?

It all becomes patently obvious that the modern ‘transgender’ movement is a true successor and probably linked far back to straight men’s transvestic clubs (radical feminist blogs have touched upon this before, I believe). Gay men, especially feminine ones like this guy and Rupaul (another person twanz, even white ones, try to drag through the mud all the time), were and are not welcome, unless they submit to Christine Jorgenson type mould and never say anything. It also becomes obvious that the entire trans projects’ goal is quintessentially exterminationist and to ensure that butch women and feminine men’s days are numbered.

Gender identity requires….
Identifying and isolating *oneself* as a unique and special KIND of person who deserves unique and special treatment –in this case, for B. Scott to be excused from the outfit rules that apply to everyone else because he’s, like, DIFFERENT and special. It becomes a matter of “who” he is as an individual. This fails to comment on the sufficiency of the rules in general, he just wants to be EXCUSED from them.

Sex stereotyping requires….
Attacking the RULE itself, as applied to *everyone,* as unfair and discriminatory with the plaintiff acting as illustrative of the LARGER PROBLEM.
……………………………………

See now, if Ann Hopkins had claimed “gender identity,” rather than sex stereotyping discrimination, we’d have no precedent for women to challenge other rules in other contexts! The decision would have been about how special and unique Hopkins HERSELF was, not about how employers are expected to act. http://www.eeoc.gov/eeoc/history/40th/panel/hopkins.html

Go on TRANS, keep getting YOUR OWN. Us women will be back here forced to wear make-up and heels like Darlene Jespersen while you go ahead with your special snowflake hall passes that excuse you from the standards that continue to oppress the rest of us.

So a gay man has to become a woman to be able to sue for sex-based discrimination now? Sweet. Looks like we’re going back in time to those good old days were gays & lesbians were called “inverts”. I’ve seen this logic increasing and it makes me really, really worried because it plays so well into transgenderism as pathologization of homosexuality.

Hmmm I wonder if a black woman made a billion dollar lawsuit against Viacom and BET for being forced to wear a tight dress and ankle snapping heels she would have “love muffins” supporting her, or if she would be deemed a greedy bitch?

And congrats to Mr. “six inch clitoris” for showing his hatred of both women and gay men in three tiny *-tiny-* words.

Wow, just wow. The amount of homophobia against feminine gay men and the gay community at large that is projected is amazing. And no one is calling them on this? I guess once they get rid of the leadership of the gay females[who are the primary campaigners of women’s rights], the gay males are their next targets.

The case is filed in Los Angeles, California. He is suing under “gender identity/gender expression,” “sexual orientation,” breach of contract, violation of the Unruh Civil Rights Act, and for intentional infliction of emotional distress.

There is NO SEX DISCRIM claim. Very interesting.

Here is California’s gender definition:

“Gender” means sex, and includes a person’s gender identity and gender expression. “Gender expression”means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.

If I was the employer, I’d defend on the basis that the “gender identity” statute is too vague to be enforced, and thus unconstitutional. (The constitutional hook is the State’s taking of property through a damage award.)

I mean, how much more circular can a definition get? Gender (identity) = gender (behavior)? What *is* gender? How *is* someone’s appearance or behavior “gender-related”? They’re craptastic statutes and hopefully Viacom’s lawyers are smart and creative.

damage to persona and reputation? Puh-effing-lease. He has gotten far more than his fifteen minutes of fame milking this faux-victimhood. I had never heard of him before this and don’t care if I ever hear about him again.

BET and Viacom will probably throw a few bucks his way to make it go away and do some public service announcement and that will be it…with the offer being based solely on the premise that it is cheaper to make him go away than to spend the time litigating this bullshit…

This post reminded me of something that’s been on my mind recently actually….
One of the reasons why i did the whole transition stuff in the past was due to issues with jobs such as the one that you linked to with the woman who wouldn’t conform to the stereotypes they were trying to get her to do (and yeah, for females it is is worse, because the femininity stuff takes way more time to do and it involves sexualization in the end).
Places wouldn’t hire me because it’s “unprofessional” for a male to have long hair and polish their nails; we’re expected to have to do the masculine role. YET once i started later on instead telling those people i had that stuff because of “gender identity” (when i was transitioning in the past) suddenly they were fine with it and it was allowed! I think this type of thing influences people to want to do transition stuff in order not to be discriminated against…

probably everybody’s trying to post the same thing, but just in case you haven’t heard, Bradley Manning is using ‘transgender!’ as his excuse for leaking US military secrets (along with having narcissistic disorder- this should be a fun one!)